With regard to the policy:
An officer could do a good stop with a good search but the bad guy with 4oz of marijuana goes free in the end because the system can't process his citation.

Shouldn't someone should step up and fix the system?

If this were a citation for a different Class A like Assault or DWI 1 then would fixing the system be a higher priority or would those offenders go free also?

I had not even considered the unfunded mandates angle raised by Stacey Brownlee. That is a very good point. I agree that the legislature should have provided funding to fix the system. Still, you are very intelligent people and I imagine you could come up with some creative stop-gap way to follow this law if it was really important. There must be something better than simply declining to prosecute offenders cited for these crimes.

I'll be honest, I still don't see why the law was passed. I think it's pointless.

If an officer doesn't want to arrest someone, then he shouldn't make an arrest -- he can just document the necessary information, write a report, and send it to the local prosecutor to let them decide whether to initiate charges; a summons can issue to notify the defendant if so. That's easier for the officer, the prosecutor, and the court -- heck, it's easier on the defendant, too. But for some unknown reason, no one ever listened to that argument during the session. So be it.

The problem with the bill is that there are too many unanswered questions (anyone who has been to one of our legislative updates will recall that part of the presentation). Also, in counties with direct file systems and 24/7 review of all jailable arrests by prosecutors (like in Harris Co., among others), the process could be used to circumvent that review, resulting in charges, court dates, etc., for defendants whose cases would not have been accepted for prosecution in the first place under the usual direct file process. How is that more efficient?

That's not to say it can't work if everyone works together. For instance, it sounds like Ken Sparks has a good system worked out in Colorado County. But what works in a county with twenty officers and one county court may not work in a county with ten thousand officers and 20 county courts, and it should be left to those local officials to use this new tool (or not) depending upon local circumstances, IMO.

IMO, the bill passed because it was a camoflauged way to decriminalize certain offenses. If the idea is so good, why not apply it to ANY offense, leaving it to the officer to decide when to arrest and when to cite?

There is a growing movement in criminal justice that is restructuring the method by which cases enter the system. For a very long time, we have accepted the notion that an officer should be able to initiate a case by simply making an arrest. More and more jurisdictions, however, are shifting that decision to include prosecutors and magistrates at the front end.

The citation law circumvents that process and puts the district attorney at odds with the desire to make sure a criminal case is necessary and the result of a meaningful and complete investigation. It also complicates the movement toward providing a defendant with timely access to appointed counsel.

quote:

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Originally posted by JB:
IMO, the bill passed because it was a camoflauged way to decriminalize certain offenses. If the idea is so good, why not apply it to ANY offense, leaving it to the officer to decide when to arrest and when to cite?

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Interestingly, one bill debated earlier in the session applied the "citation" principle to ALL Class A and B misdemeanors, but it was overtaken by the final version of HB 2391, which was limited to a random (or maybe not-so-random) assortment of misdemeanors as a type of "pilot program."

I can promise you someone will attempt to expand the law next session.

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I can promise you someone will attempt to expand the law next session.

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If it is expanded to cover everything Class A and below then, mark my words, the next thing people will want is certain Class A offenses bumped up to SJF to force an arrest.

When pigs fly.

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Originally posted by JB:
When pigs fly.

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Sorry, John, but HB 2543's amendments to Ag. Code Sec. 161.1375 ("Movement of feral swine") may make pig-flying a Class C misdemeanor -- Class B for repeat offenses -- so before you make yourself a party to that criminal offense, I suggest you find a new pithy expression for disbelief or impossibility.

Just curious, but having taught criminal justice courses for a number of years, it is my understanding that an officer (absent an express statute e.g. family violence) has ALWAYS had the discretion NOT to make an arrest. That is, the officer is free to sieze contraband, then write a report and submit the report to the prosecution for a determination of how to proceed. To me, the only real "addition" made by the new statute seems to be the ability of the officer to go ahead and issue the citation / summons - still leaving the ultimate charging decision to the prosecution, and avoiding a jailing, etc, in a case that is ultimately declined. But especially with local resident defendants, it makes sense to allow the officer to issue the citation rather than make an arrest, assuming that system is consistent with the practices / system in your jurisdiction. To me, the bill appears to give officers a third option: 1) arrest 2) release and file report later OR 3) issue citation. This third option may improve efficiency by allowing the prosecution to prepare a complaint / information, and then not having to issue a warrant and go locate the defendant, but wait for the appearance date on the citation, and proceed from there. Is giving officers this additional option really such a bad thing?

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Originally posted by Larry L:
Just curious, but having taught criminal justice courses for a number of years, it is my understanding that an officer (absent an express statute e.g. family violence) has ALWAYS had the discretion NOT to make an arrest.

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Correct.

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To me, the only real "addition" made by the new statute seems to be the ability of the officer to go ahead and issue the citation / summons - still leaving the ultimate charging decision to the prosecution, and avoiding a jailing, etc, in a case that is ultimately declined ... This third option may improve efficiency by allowing the prosecution to prepare a complaint / information, and then not having to issue a warrant and go locate the defendant, but wait for the appearance date on the citation, and proceed from there. Is giving officers this additional option really such a bad thing?

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Well, yes -- if you're asking the defendant to appear in court, and the prosecution to charge a defendant, for a jailable offense based on nothing more than a citation. That is what can conceivably happen under HB 2391, which is why some prosecutors may be reluctant to remove those checks and balances on an officer's authority that exist under the current system. But again, that's not to say this new law can't work -- it just isn't the greatest thing since sliced bread, like some proponents seem to think, and it might even be less efficient in some counties. It just depends on the situation.

And then there are people like the deputy who asked me today "where he could find the law reducing POM to a Class C." He meant HB 2391, but he didn't know it -- all he "knew" was that the penalty had been "reduced" by the Lege and they could just write tickets for it. We get enough of those types of calls to realize that the uninformed or misinformed are going to make hash of this new law in some jurisdictions!

Shanon - excellent points. It would seem that it would be absolutely necessary for the officer issuing a citation to follow up with a report upon which a complaint / information would be based. I apparently made the error of assuming that a report would be done after a citation is issued, since presumably a report would be done upon an arrest. In a state with 254 counties, it is hard to imagine a 1 size fits all solution. At the same time, it looks like the officer's discretion to charge or not to charge has not been changed, only what occurs when the decision to charge has been made by the officer. Of course I would not want to prosecute on the basis of a citation, but the remedy to that issue appears to be in maintaining / initiating a policy of timely report filing when citations are issued.

That's true, too, Larry.

Stepping back from the arrest issues, another way to look at this bill is that it takes a court's bonding authority and gives it to the officer, in that the officer essentially issues the arrested person a personal recognizance bond (albeit an unenforceable one) and a summons to appear in court at a date certain while out at the scene of the crime. (I can only imagine how the judges feel about the legislature giving away that authority to someone else, but perhaps that is a good lesson about what happens when you don't get involved in the process.)

Needless to say, that can get messy if the officer is not in sync with his local prosecutor and judge due to concerns about record-keeping, magistration, appointment of counsel, and more. Hence, our recommendation at our seminars for either the "three legs of the stool" to work together, or don't implement it at all; it can't be a half-way deal.

I think the bottom line is that this is not mandatory, and participants in local criminal justice systems are free to use it or not -- and if they don't use it, and have valid reasons for not using it, then so be it.

Maybe I am "spoiled" since our office has an excellent working relationship with the judges and law enforcement agencies. It is easy to see how things could get out of hand quickly if all "3 legs of the stool" are not communicating and working together.

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Originally posted by JB:
IMO, the bill passed because it was a camoflauged way to decriminalize certain offenses.

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Now, now, John, don't you think that's a little prema--er, oops, wait a minute, maybe not ...


Lawmakers relax rules on people caught with pot

Friday, August 24, 2007
By ELISE HU
KVUE News
The article

Getting caught with a little marijuana in Texas may not mean automatic arrest -- at least not anymore.

Starting September 1, police officers will have the discretion to let people caught with four ounces or less get off with a citation and a court date -- instead of being booked.

"It will save us both time and money," said Travis County Sheriff's Department spokesman Roger Wade. "It will give the deputy out on the street a chance to actually stay out on the street."

The Sheriff's Department estimates booking people caught with four ounces or less cost more than $1 million in 2006.

Wade says the change will help unclog booking facilities, too. The criminal penalties for pot possession are not changing; rather, the change simply keeps lower risk lawbreakers from being taken into custody.

"Most marijuana users aren't violent criminals," said Rob Kampia, executive director of the Marijuana Policy Project. "If they are violent, they'll get arrested for the violence."

Lawmakers passed the change in House Bill 2391 without fanfare during the spring session.

The new law also gives officers discretion over whether to arrest petty thieves and graffiti artists. Support for the measure is wide.

"It would actually make the most sense not to cite anyone for marijuana and not put them in jail or fine them at all -- it should be legal," said Kampia. "However, this is a step in the right direction."

"Rep. Madden may wish to minimize marijuana possession. I don't," said Bexar County District Attorney Susan Reed.


Details.

"Williams, a father of four, says he would have lost his job if he had been arrested the day he was caught with marijuana."


Let's all think about the children before we arrest people!

Marijuana smokers with small amounts of the drug or people driving while their licenses are suspended could soon be spared a trip in the back of a jail-bound Austin police car.

Details.

Court schedules one docket per month for appearance on pot citations and provides schedule to law enforcement and DA before the first of each month. Officers may arrest, but have discretion to issue citation with that scheduled appearance date and officer writes full discoverable report to document probable cause for stop/citation. Reports go to DA for review prior to scheduled docket so information can be filed and appearance then proceeds as with any other class B offense.

When does the person get booked?